Thursday, August 29, 2013
Adam M. Gershowitz (William & Mary Law School) has posted Seizing a Cell Phone Incident to Arrest: Data Extraction Devices, Faraday Bags, or Aluminum Foil as a Solution to the Warrantless Cell Phone Search Problem (William & Mary Bill of Rights, Vol. 22, 2014, Forthcoming) on SSRN. Here is the abstract:
Courts are deeply divided on the question of whether police can search a cell phone incident to arrest without a warrant. This essay argues that the Supreme Court should not authorize warrantless cell phone searches. However, the Court should allow law enforcement to seize cell phones without a warrant and immobilize the devices until a magistrate determines whether to issue a warrant. While a cell phone is in police custody, there are three ways for law enforcement to preserve the data and protect against remote destruction: (1) Police can use a data extraction device to download a copy of the phone's data; (2) The phone can be placed in an inexpensive bag called a Faraday cage that isolates the phone from outside communication and prevents remote wiping of the contents; or (3) Police can simply wrap the phone in aluminum foil to create the same protection as a Faraday cage at virtually no cost. Any of these methods will protect against remote destruction of evidence in almost all cases. And there is longstanding precedent to support a regime of warrantless seizures while a warrant request is pending. Allowing warrantless seizures and isolation of cell phones strikes a balance between the competing concerns of cell phone privacy and the need for police to preserve evidence.